Photo by Sleeping Bear Tour Company’s Julie Den Uyl
By Calli Crow, FLOW Development Specialist
On Saturday, April 25, members of FLOW’s board and I joined a few hearty volunteers on a trek to North Bar Lake in the Sleeping Bear Dunes National Lakeshore to join Sleeping Bear Tour Company for an exclusive two-hour wilderness tour highlighting the lakeshore’s gorgeous light sand beaches, beautiful turquoise waters, cedar swamps, and maple beech forests. The hike was led by former Park Ranger Julie Den Uyl, who recently launched Sleeping Bear Tour Company.
Our group benefited from great weather for hiking but we still dressed in layers to accommodate what Julie referred to as the “four seasons” of this particular hike. One moment we were peeling off sweaters and hats as we filed up sunny, sandy slopes and the next we were zipping our windbreakers and donning hoods as we faced the refreshing inland sea breezes. We had lovely, casual conversations about water and life as we strolled the shore scanning for Petoskey stones. A favorite moment of the hike was a snack break in the woods between the Lake Michigan shore and North Bar Lake. We all enjoyed the fresh air and pine trees and great company.
Speaking of great company, our FLOW group was joined by Tim Rehard and his husband Curt Titus of Camp Dubonnet, a top Hipcamp site located on a 16-acre horse farm in Grand Traverse County with access to Lake Dubonnet. This new “secret” spot is friendly and fun and home to really cute new baby goats.
The Sleeping Bear Tour Company (SB2R) was recently featured in the Leelanau Ticker as one of the county’s “Budding New Businesses.” SB2R has the special distinction of being authorized by the National Park Service as the first-ever personal guide service company to be able to lead tours into the National Lakeshore’s “wilderness lands.”
FLOW and the Great Lakes are healthier and stronger because of the help we have received from interns specializing in law, policy, and communications during our 10 years of keeping water public and protected.
Case in point: Alex Theophilus, who has served since January as a policy intern at FLOW. Currently studying environmental geography and sociology at Colgate University in Hamilton, New York, Alex grew up in Leelanau County and the Traverse City area before graduating from Traverse City Central High School in 2018. We asked Alex to share his thoughts about his experience as a FLOW intern in a year unlike any other as the COVID-19 pandemic continued its grip on the globe. Here are Alex’s responses to the questions we posed.
What do you think of FLOW as a result of your internship?
Throughout my months working with FLOW, I have been continuously awestruck by the passion and intelligence of the staff and those who work closely with the organization. FLOW is fighting to protect the resources that are often taken for granted and the people who have been rendered voiceless in environmental injustices of the past and present. My involvement has given me insight into the depth of the climate issues we must overcome to achieve a sustainable future for generations to come in the Great Lakes, while also allowing me to witness the willingness to fight for the protection of our most valuable public asset.
What about the issues that you’ve worked on has interested you the most?
My work on issues related to Michigan’s groundwater has been of particular interest to me, and represents a topic that I hope to maintain a connection to moving forward in my life. Collaborating with Dave Dempsey and other FLOW staff on the recently released groundwater report, Deep Threats to Our Sixth Great Lake, as well as on subsequent projects, has motivated my interest in an issue that directly impacts ecological and human health. Protecting our groundwater resources is vital to the well-being of Michiganders, and deserves at least equal attention to surface water-related threats.
What do you hope to do in your career and how has your internship supported that?
Following my graduation from Colgate University in the Spring of 2022, my plan is to attend graduate school for further studies in either environmental justice or sustainable resource use. My plans after that are either to remain in academia while researching and teaching, or to work with a non-profit organization undertaking similar work to FLOW’s focus. My internship has supported these motivations by allowing me to gain experience within an non-governmental organization fighting for issues of both environmental justice and water management, while exposing me to a wide variety of situations that have expanded my understanding of how the real-world fight for a healthy environment works.
What do you think are the greatest threats to water and the best solutions, too?
I think the greatest threats to water in the coming years will be based around privatization of our public resources. From the Great Lakes to our rivers and groundwater sources, the control over water does not belong to any single corporation or group. The best way to guarantee water remains uncompromised and available for use in the livelihood of all people is to protect it with public trust law that both guarantees access, while also defending populations from pollution or other hazards.
Tell us a little about what got you into the environmental field—what’s your personal connection—what’s one of your favorite places outdoors?
Growing up in the Traverse City and the Leelanau County area allowed me to spend my time in a natural world that consisted of nothing but pristine coastlines, beautiful forests, and immaculate sand dunes. As I got older and my intellectual appetite began to grow, came an understanding of the privilege that my connection to the environment represented, and a knowledge of the ways in which environmentalism needs to be so much more than a desire to recreate unobstructedly. While my interactions with my natural surroundings had never been anything but positive, I grew to recognize that environmental injustices have been perpetrated against human populations and our planet’s ecosystems for centuries. This has resulted in countless situations in which communities must fight for their lives against their polluted environment, rather than holding any hope of a symbiotic relationship. I now feel I have a responsibility to future generations and the environment that has done so much for me, to join the fight against the wrongs of the past, while working to prevent such injustices from further impacting people and other living things.
The following is in reaction to the Michigan Public Service Commission’s ruling today regarding the scope of review for permitting required for Enbridge to replace and relocate its decaying Line 5 oil pipelines crossing the Straits of Mackinac with a proposed 18- to 21-foot diameter tunnel housing a single new pipeline.
FLOW and other organizations and tribes have formally intervened in the MPSC contested case process for siting the tunnel and pipeline to assert that Michigan law requires a comprehensive review of the project’s necessity, impacts, and alternatives in the context of climate change and the ongoing rapid transition to renewable energy sources.
“FLOW applauds the MPSC’s careful commitment to science, sound economics, and the public interest,” stated Liz Kirkwood, executive director of For Love of Water (FLOW). “The Commission’s decision is significant because it recognizes that the Michigan Environmental Protection Act applies to consideration of greenhouse gas emissions that would be spurred by Enbridge’s proposed oil pipeline tunnel. The MPSC clearly understands the need to accelerate the energy transition, adopt clean energy solutions, and avoid the environmental and economic impacts of legacy fossil fuels.”
Jim Olson, FLOW’s founder and legal advisor, said, “The MPSC’s decision demonstrates true leadership to address the transport and consumption of crude oil and the devastating effects crude oil has on the climate and the Great Lakes, infrastructure, and our quality of life in the 21st century.”
Background on Line 5 and the MPSC
See FLOW’s ongoing coverage of the Michigan Public Service Commission review of the Enbridge oil pipeline tunnel proposed for the Straits of Mackinac here:
Stenzel is Professor Emeritus of International Business Law, Michigan State University and Coordinator for Ethical Leadership Programs in the Broad College of Business at MSU.
By Paulette L. Stenzel
The COVID-19 pandemic has slowed life in many ways, yet Okemos High School junior Bernadette Osborn and her classmates in the Lansing area have moved quickly and energetically to confront the challenges of climate change.
Osborn first heard about climate change when Hurricane Sandy hit her family’s home in Gunpowder Falls State Park, Maryland, in October 2012. In 2015, she moved to Michigan with her family and took a physical science course at Okemos High School with teacher Dave Chapman where she was inspired to learn more about the challenges related to climate change.
In the spring of 2020, Osborn decided that she wanted to start a Lansing area chapter of the Climate Reality Project, and she realized that goal in September. Since then, the chapter has grown and launched several campaigns. During Earth Week 2021 the chapter has launched a new campaign on water conservation that will include a presentation on Thursday, April 22, by FLOW Executive Director Liz Kirkwood.
During the spring of 2020, while businesses were shutting down and schools were moving to online teaching, Osborn saw an advertisement on Instagram for former Vice-President Al Gore’s Climate Reality Project. She said she was “looking for something meaningful to do.” She was soon off and running, using her free time to make a difference at the grassroots level. She and her fellow climate activists have worked on climate education and initiatives in the Lansing-area community and across the world through the Internet. During Earth Week 2021, they are launching a new campaign focusing on water conservation. The launch includes daily presentations to help members and others learn about the relationship between climate change and Michigan’s waters.
When Osborn set out to form the Lansing area chapter, she learned that a team of five people is required to start a chapter and that the president of a chapter must be older than 18. So she enlisted three other Okemos High School students for the leadership team. Additionally, she searched the Internet for that “someone” over age 18.She found a kindred spirit in Carolyn Randall, who trained with the Climate Reality Project in 2013. Randall currently volunteers with the Michigan Climate Action Network and the Climate Citizen’s Lobby focusing on legislative efforts.The Lansing Climate Reality chapter was officially recognized by Gore’s organization and launched in September 2020.
Randall now chairs the Lansing Chapter, while Osborn serves as Vice-Chair and Presentations Committee Chair. Three Okemos High School students lead three additional committees: Aiko Major (Marketing and Communications Committee Chair), Allison Schoen (Campaigns Committee Chair), and Anna Hicks (Membership Committee Chair). The 33 current members of the group include 19 high school students, two college students, and members of all ages from the general public.
Climate Reality Lansing holds monthly meetings. Osborn also hosts a series of weekly webinars on topics related to climate change. Presenters include members as well as non-members. Since September, Osborn has given nine presentations on topics including, “Current Climate Legislation” and “The Steps to Marine Conservation.” Those presentations reach 33 members and 20 non-members. Some attend the “live” Zoom presentation each Saturday at 5 p.m., while others watch from a link provided following the presentation. (The participating non-members are ineligible for membership in the chapter because they live outside the Lansing area.)
The Presentations and Education Development program comprises one of the Chapter’s campaigns. Other campaigns include, “Our Climate Moment: Let’s Get to Work,” “Plastic Pollution Reduction,” and “Water Pollution.” Activities related to the campaigns include participation in a postcard project. In cooperation with the Lansing-area Citizens Climate Lobby, members write to legislators to encourage them to support climate-related legislation. Lansing Climate Reality Chapter members have joined the Meridian Conservation Corps in weeding and removing invasive species on Meridian Township lands. They worked outside, six feet apart, and wore masks to follow COVID-19 safety protocols. Additionally, they are building relationships with like-minded people in groups including Michigan State University’s Student Sustainability Leadership Council and the newly-formed Michigan State Climate Reality Project–Campus Corps.
When I asked Osborn about her motivation and goals, she explained that she was surprised when she came to Michigan and learned about the pressing need for change in response to climate change. Many people in Maryland, her previous home state, did not think a lot about it despite hurricanes and oil spills that, directly or indirectly, are exacerbated by climate change. When I asked Osborn about her career goals, she responded, “I am dead set on this: I want to be a scientist, and my dream job will be in marine conservation. I have known that this is what I want to do since about second or third grade.”
I will be watching and cheering for them, as they make a difference, one conversation, one blog post, one letter, and one webinar at a time. We need our young leaders more than ever to make a difference. Based on what Bernadette Osborn and her teammates have accomplished despite COVID-related restrictions, I am convinced that they will continue to make a significant difference as we move beyond this pandemic. During these challenging times, Osborn and her teammates already are making a significant difference through education and action.
With growing scientific confirmation of accelerating global climate change, Earth Day 2021, which falls this Thursday, is more than just another Earth Day. For the first time, an American president will host aninternational climate summit on Earth Day to “reset” domestic and international strategies to combat alarming climate trends. The Biden Administration invited 40 world leaders to the summit, and on April 17 announced an agreement with China to “seriously and urgently” tackle the problem.
Meanwhile, Michigan Governor Gretchen Whitmer created theCouncil on Climate Solutions to advise her on ways the state can become carbon-neutral by the year 2050, and achieve a 28% reduction in greenhouse gas emissions by 2025. The Office of Climate and Energy has scheduled two listening sessions to hear public comments about the MI Healthy Climate Plan, one on Earth Day and one on May 5. Click here to join the Earth Day virtual listening sessions.
Biden’s steps may be the most important a president has proposed since the first Earth Day 51 years ago, and Whitmer’s developing climate plan has major implications for Michigan’s future. But Earth Day-related action is nothing new to Michigan. The year of the first Earth Day, 1970, is a significant date in Michigan environmental history. Last year,FLOW illuminated the ways in which Michigan citizens and elected officials put our state on the map in 1970 with the Michigan Environmental Protection Act, the creation of Sleeping Bear Dunes National Lakeshore, the Natural Rivers Act, and more.
While global issues will headline Earth Day events, individuals can show their stewardship in a number of ways this spring:
Homegrown National Park, a cooperative conservation effort, hopes to spur Americans to restore biodiversity and support ecosystem function by planting native plants on 20 million acres of private land, approximately half of America’s privately-owned green lawns.
Improvements in organic waste disposal represent one of the most promising areas for growth in small scale attempts to mitigate climate change. A composting initiative in your backyard or community can help keep organic matter out of landfills while simultaneously reducing methane gases and our ecological footprint. For information on how to start a composting program for your household, check out these resources fromNPR on “How to Compost at Home”andOregon State University on “Compost in the Backyard.“ (FLOW intern Alex Theophilus is teaching seventh graders at Glenn Loomis middle school in Traverse City how to backyard compost.)
More Opportunities to Observe Earth Day in the Grand Traverse Region
The Grand Traverse County Conservation District is organizing anEarth Day Workbee at the Miller Creek Nature Reserve. Tree planting and trail sprucing up run from 9:00 a.m.-noon Thursday.
Sleeping Bear Surf & Kayak in Empire is partnering with Sleeping Bear Dunes to host a beach cleanup at North Bar Lake on April 22.
Sleeping Bear Dunes National Lakeshore will engage the public in Earth Day virtually through this year’s theme, “Restore Our Earth.” The National Park Service will host a virtual event at 1 pm EDT on April 22 titled, The Future of Conservation.
FLOW (For Love of Water), the Great Lakes law and policy center based in Traverse City, is excited to announce the growth of our Board of Directors as we welcome tribal law expert Matthew L.M. Fletcher.
“We are thrilled to welcome Matthew Fletcher to our Board of Directors,” said FLOW Executive Director Liz Kirkwood. “Matthew’s extraordinary knowledge of tribal history, custom, and law will greatly serve to advance FLOW’s mission to protect our shared waters as a commons from one generation to the next. We have much to learn from traditional indigenous ecological knowledge and teachings about stewarding our precious Great Lakes and freshwater.”
Fletcher is Foundation Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He has been a visiting professor at the University of Arizona Rogers College of Law, the University of Michigan Law School, the University of Montana Blewett School of Law, and Stanford Law School.
Fletcher is a frequent instructor at the Pre-Law Summer Institute for American Indian students. He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Colorado River Indian Tribes, the Grand Traverse Band of Ottawa and Chippewa Indians, the Hoopa Valley Tribe, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, the Pokagon Band of Potawatomi Indians, the Nottawaseppi Huron Band of Potawatomi Indians, the Rincon Band of Luiseño Indians, the Santee Sioux Tribe of Nebraska, and the Tulalip Tribes. He is a member of the Grand Traverse Band.
He is the Reporter for the American Law Institute’s Restatement of the Law of American Indians. His most recent law review articles appeared in the California Law Review,Michigan Law Review, and Stanford Law Review Online. His hornbook, Federal Indian Law (West Academic Publishing), was published in 2016 and his concise hornbook, Principles of Federal Indian Law (West Academic Publishing), in 2017. Fletcher co-authored the sixth and seventh editions of Cases and Materials on Federal Indian Law (West Publishing 2011 and 2017) and two editions of American Indian Tribal Law (Aspen 2011 and 2020), the only casebook for law students on tribal law.
Fletcher also authored American Indian Education: Counternarratives in Racism, Struggle, and the Law (Routledge 2008). He co-edited The Indian Civil Rights Act at Forty with Kristen A. Carpenter and Angela R. Riley (UCLA American Indian Studies Press 2012) and Facing the Future: The Indian Child Welfare Act at 30 with Wenona T. Singel and Kathryn E. Fort (Michigan State University Press 2009). Fletcher’s scholarship has been cited by the United States Supreme Court, in more than a dozen federal, state, and tribal courts, in dozens of federal, state, and tribal court briefs, and in hundreds of law review articles and other secondary legal authorities.
Fletcher graduated from the University of Michigan Law School in 1997 and the University of Michigan in 1994. He has worked as a staff attorney for four Indian Tribes—the Pascua Yaqui Tribe, the Hoopa Valley Tribe, the Suquamish Tribe, and the Grand Traverse Band He previously sat on the judiciaries of the Grand Traverse Band, the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Little River Band of Ottawa Indians, the Lower Elwha Klallam Tribe, and the Turtle Mountain Band of Chippewa Indians; and served as a consultant to the Seneca Nation of Indians Court of Appeals. He is married to Wenona Singel, a member of the Little Traverse Bay Bands of Odawa Indians, and they have two sons, Owen and Emmett.
Michigan groundwater policy has failed to evolve even as understanding has grown about groundwater’s importance and its interconnection with the Great Lakes. The simple fact that Michigan has approximately 14,000 groundwater contamination sites with an estimated cleanup bill of over $1 billion—most of it likely to be charged to taxpayers—should make groundwater a public policy imperative. The first major step toward fulfilling the public commitment to groundwater is the enactment of a Michigan Groundwater Protection Act with elements described in FLOW’s recent report,Deep Threats to our Sixth Great Lake: Spotlighting and Solving Michigan’s Groundwater Emergency.
Michigan’s groundwater crisis has drawn little attention, but it is a worsening problem for our state. FLOW’s recent groundwater report, Deep Threats to Our Sixth Great Lake, spotlights its implications, and calls for a change in state law to protect our groundwater and public health. Click here for the Deep Threatsfact sheet.
The lack of urgency in strengthening protection of Michigan’s groundwater is shortsighted. When rivers burned in 1969, federal lawmakers passed the Clean Water Act. When the Exxon Valdez spilled 11 million gallons of crude oil into Prince William Sound in 1989, Congress toughened safety requirements for shipping of petroleum products.
Similarly, Michigan’s Legislature responded rapidly to a major mercury contamination crisis in 1970 and findings about the toxicity of PCBs in 1976. Yet spill after spill of hazardous materials into groundwater has happened for decades in Michigan, and the policy response has been incremental.
This is inexplicable when 45% of the state’s population gets its drinking water from groundwater wells. Groundwater is also critical to agriculture, manufacturing, and even recreation; steady, cool groundwater flow is vital to Michigan’s renowned trout streams, like the Au Sable River.
Michigan Law Views Groundwater as Expendable
Michigan law views groundwater from the vantage point of how much of it we can sacrifice instead of how much we must protect. Rather than establish an overarching protection policy, our statutes treat groundwater as something available for assimilating pollution. Scattered among our laws are provisions allowing differing treatment of groundwater depending on the pollution source–landfills, oil and gas development, underground injection of hazardous wastes, permitted discharges, agricultural pollution, management of contaminated sites, and more.
Michigan should formally adopt a Groundwater Protection Act that calls for protection of groundwater as part of a single, hydrological whole. In connection with streams, lakes, and wetlands, groundwater should be held in trust for the benefit of citizens, protected from pollution or impairment, a critical drinking water source, directly related to public health. The policy should emphasize the state’s primary duty to prevent pollution of groundwater or its connected waters of the state, and to support public education concerning groundwater consistent with this overall policy.
A Groundwater Protection Act is crucial to Michigan’s future. FLOW will ask citizens concerned about the protection of these vital waters to join with us in seeking action by state officials in months to come.
Both of these transactions signal a significant trend amidst a world water crisis and a serious danger to water as a human right and commons that has been considered public for over 1,500 years, raising the question: Will Wall Street and the Commodities Exchange own and control our water in the 21st century?
This is not the first time the financial and investment world have acquired or sought to control freshwater. The corporate acquisition of the rights to large volumes of water and control over the means to deliver them has haunted California and Western states for a long time. Well before investigator Jake Gittes probed the subterranean dealings of a Los Angeles water cartel in the acclaimed 1974 film “Chinatown,” a water war broke out in Colorado when East Coast water corporations set up privately financed and controlled water cooperatives to allocate and deliver water to farmers and ranchers. A populist revolt in Colorado in the late 1800s by settlers, farmers, and Jeffersonian purists put an end to the attempted takeover and chapter of Colorado history, culminating in a constitutional amendment that declared water was public and belonged to the people.
After the American Revolution, ownership of water passed from the Crown to the states as sovereign–meaning owned by the people. The title to navigable lakes and streams vested in the states absolutely when they joined the Union. Today, these common waters are protected by an ancient legal principle called the “public trust doctrine.” Under this doctrine, a state vested with this sovereign title to these n waters holds them in trust , charged with a solemn duty to protect these waters for generations in order to safeguard the basic public rights of citizens, as beneficiaries of this trust, for navigation, fishing, sustenance, drinking water, bathing, swimming, and other forms of water-dependent recreation. To assure the perpetuity of this trust, the doctrine prohibits the sale or disposition of these trust waters for private purposes or gain. (This was established in Illinois Central R Rd v Illinois).
Both of these transactions signal a significant trend amidst a world water crisis and a serious danger to water as a human right and commons that has been considered public for over 1,500 years, raising the question: Will Wall Street own and control our water in the 21st century?
The New Face of Privatization and Commodification Foretold
A familiar face of privatization over the past several decades has pitted residents and ratepayers of cities against global corporations like Veolia and Suez, threatening or taking over municipal public water supply systems, often with unaffordable increased rates and poorer service. One of the most widely known faces over the control of freshwater has galvanized citizens and communities to oppose bottled water giants like Nestlé, whose web of private or leased publicly owned wells and bottling facilities spreads to the four corners of the United States and into Canada.
But a new face has appeared with the recent announcement of the future commodities market proposed for California and One Rock’s acquisition of Nestlé Waters North American business. The water futures commodity markets will allow private investors to purchase contracts that bet on future scarcity and higher prices for water. And, Global water giants will continue to acquire control of municipal water systems, and Wall Street will look for more opportunities to acquire water sources and delivery systems like Nestle. Perhaps, most dangerous, investment firms like One Rock will look for ways to accumulate land and the right to use water to exploit those states or countries whose water law rules can be manipulated to extract and sever water from the land so it can be sold and delivered across continents and around the world.
The Shifting Gradient of Water Law
Beneath the surface of these faces of privatization and commodification lies a subtle, nearly indiscernible shift in the gradient of water law. This shift tips water away from the land and watersheds where it flows toward the diversion, sale, and delivery of billions of gallons of water as a product by any means or in any sized containers. This subtle shift in places, where the underlying water law of a state recognizes the transfer of a right to access on demand the allocation of a certain amount of water, makes it more likely water futures markets and Wall Street investors will pool money to create contracts or hedge funds to attract investors who have no interest in the water itself–the attraction is the price and profit that can be gained off speculation over the rising prices of scarce, freshwater. The more certain the right to divert and sell or allocate a specific volume of water, the more likely the success of a water market or the investment in water-rich land or water sources.
For example, the reason the Chicago Mercantile Exchange can experiment with an investment contract in water as a commodity is because, as noted above, that under California and Colorado water law water rights in connection with land are based on the appropriation doctrine—first-in-time, first-in-right—that establishes a right to a specific amount or allocation of water based on use, and recognizes that the right to such water can be assigned or traded between the holders of those water rights. Put simply, the transaction is similar to the trade, transfer, or sale of one property for another or for cash, valued at the time by the demand and supply established by buyers and sellers. Typically, this involves the direct trading or selling of these water rights between farmers, cities, or other high-volume users. However, the trading of water can also occur between farmers, other landowners, and a bottled water company located elsewhere in a state, as has happened with Nestlé’s water operations in Salida, Colorado, over the past several years. Water commodity markets will look for states with well-established trading in law and policy.
East of the 100th Meridian, water law is based on some form of reasonable use, or similar rights of use, of water in connection with the overlying land. Generally, under reasonable use rules (which vary from state to state), the landowner may withdraw and use as much water as needed so long as the withdrawal and use does not unreasonably interfere with or harm the use of other adjacent or nearby landowners on a lake or stream or overlying a groundwater formation. However, unlike Western states, there is no right to a certain amount of water, and often there are qualified limitations on the diversion and use of the water on distant lands or in other watersheds.
Historically, as noted above, in Eastern water law states, the reasonable use of water in connection with land is unique to each situation. As noted above, there is no right to a fixed or certain quantity of water; therefore, the creation of a water commodities market becomes difficult, if not impossible. The amount of water in a watershed at any given point of time, the number of users, the demand of other users, the purpose and extent of the diversion of water, the needs of the stream or lake, along with other factors dictate how much water could be withdrawn for sale: Generally, under Eastern water law, the diversion of water out of a watershed for sale is qualified by the limitation that it cannot diminish the flow or level of a lake, stream, or a neighbor’s well. (This was established in Collens v New Canaan Water Company).
However, more recently some Eastern states have begun to erase or modify this limitation on the diversion of water for sale. As a result, while the reasonable use doctrine may not provide a viable legal basis for a water commodities market, it may and does provide the owner of land with abundant water sources in some states the legal right to divert and sell water in containers as with bottled water. In the past two decades, states through court decisions or their legislators have modified the common law of water use to include the right to separate the water from the land, and deliver and sell water to distant places without qualified limitations against diversion and sale that have protected, historically, the rights of other landowners and communities and the watersheds on which they depend for quality of life, jobs, and economy. This shift in the gradient of water law is reminiscent of the old adage that “water flows uphill to money.”
For example, in 2005, a Michigan appeals court side-stepped a 75-year-old rule that prohibited the diversion of groundwater off-tract for diversion to a distant municipal water utility, when it adopted a “reasonable use balancing test” to allow Nestlé’s to divert the water through its bottled water sales. (This case was Michigan Citizens for Water Conservation v Nestlé Waters). Similarly, as part of the adoption of a ban on diversion of waters from the Great Lakes Basin as part of the 2008 Great Lakes Compact (Great Lakes-St. Lawrence River Basin Water Resources Compact), the eight states agreed to a definition of “diversion” that carved out a “product” exception if the water is transferred outside the Basin and “intended for an intermediate or end use consumer”—think massive freight containers of water shipped on trains or giant ocean barges around the world. During this same time, Nestlé brought in a California water rights lawyer to persuade legislators to adopt and manage a water allocation law system—in other words, the basis to move toward the transfer of allocated quantities of water—which would form the basis of a water market. Fortunately, a Michigan legislative committee rejected a shift to a western water allocation system, but in 2008 the legislature passed a groundwater withdrawal law that allowed for the withdrawal and sale of bottled water.
As the global and regional water crises and scarcity intensify, the pressure on states to change their underlying water law, that governs treasured sovereign water as a commons held for the benefit of citizens, to shift the rules of water law toward allocation or diversion and sale in favor of privatization and commodification.
This pressure threatens the conversion of our public water resources into more private control or a commodity through subtle changes in the law that increase the prospects of large private investors. It may happen directly, by changing the law to appropriative and transferable water rights like California; or, it may happen in the shadows of court decisions or unnoticed legislative changes, so that private landowners and corporations can control, capture, and sell as much water as they want up to the point that the harm is so substantial that someone finally stops it, such as the sale of billions gallons of water and a 10-year court battle that no citizen can afford to file in the first place (Michigan Citizens for Water Conservation v Nestlé Waters).
The point here is this: The privatization, commodification, or financialization of water may not be practical or even possible without favorable water laws and rules in a particular state. Except for water lawyers, land investors, judges, legislators, and thirsty water users like agricultural operations and sprawling cities, these shifts in water law beneath the feet of most citizens remain under the radar for most people.
States and their citizens are forewarned: Take action to reaffirm water is public and a commons protected by an overarching public trust, or they will wake up one day with notice in their mailbox or inbox that, in the future, for a fee, they will have to purchase a plastic water credit or debit card as a prerequisite for access to water.
As the global and regional water crises and scarcity intensify, the pressure on states to change their underlying water law, that governs treasured sovereign water as a commons held for the benefit of citizens, to shift the rules of water law toward allocation or diversion and sale in favor of privatization and commodification.
States Must Declare Water Public, Sovereign, and Held in Public Trust.
Unlike the localized battles over water in the Gilded Age, the war over water in the 21st century is both local and global, and calls for vigilance and strong declarations by states and citizens that uphold the paramount principle that water is public, and that it is understood by all that the rights to water of citizens, farmers, small businesses, landowners, and communities are paramount—above all else—against claims by corporations whose only aim is control over their balance sheets and profits from control of water sources and supplies and the speculation over water future prices in a worsening world water crisis.
In recent years, states and courts have begun to extend the public trust doctrine to smaller tributary streams and groundwater for the simple reason that the extraction of tributary water from a single hydrologic system will cause serious harm as much as if the pump diverted the water from a larger lake downstream (This case was National Audubon v Superior Court).
The public trust may be the only principle to protect citizens’ right to water without having to buy a water credit card for their next drink.
States and citizens can protect themselves and the state’s public water by passing laws or constitutional amendments that declare to the world that the waters of their state are above all else public and sovereign and held in public trust for all citizens of the state. Citizens at the local level can insist their local governments pass resolutions and ordinances that also declare water a human right and commons held in public trust. The Blue Communities Project has fostered a global movement by cities and towns to adopt resolutions to prevent the privatization and commodification of water, protect the right of access to water, and assure that water is first and foremost public and held and protected by public trust principles.
In doing so, a state will establish a shield against privatization of its public common waters. This does not mean a landowner cannot enjoy the reasonable use of water under the common law of the state. But it does mean that regardless of the common law right to use or sell water, it is limited by an overarching public trust that imposes a standard enforced by the state as trustee and citizens as legal beneficiaries.
The public trust imposes the standard that no private use or sale can impair the paramount rights of citizens to use and enjoy their water for navigation, sanitation and bathing, fishing, swimming, food and sustenance, and other needs where they live. At the same time, this sends a message to the rest of the world that a state’s water is a commons held in trust, and that those who seek to control and sell water as a private commodity, through hedge funds, water corporations, or other Wall Street investment schemes, do so at their own peril or with the realization that their investment is subordinate to the rights of citizens and communities to the water in their watershed.
The public trust may be the only principle to protect citizens’ right to water without having to buy a water credit card for their next drink.
Sleeping Bear Dunesmobile photo courtesy of Glen Lake Community Library
By John Gannon
My first experience with Sleeping Bear Dunes was in the mid-1950s, when I was a teenager, accompanying my family onthe Dunesmobile ride. I recall the ride in those convertible Oldsmobile 88s with the big, balloon tires so they didn’t get stuck in the soft sand. That sticks in my mind all these years later because a 1954 Oldsmobile 88 was the first car I ever owned, and I used primarily for my commute from home in Detroit to attend Wayne State University (WSU).
My senior year in 1964 at WSU included my first summer at the University of Michigan Biological Station (UMBS) east of Pellston on Douglas Lake. I took two courses: limnology (freshwater ecology) taught by the late Dr. George W. Saunders, which set my life-long career in motion as an aquatic biologist, and Energy Exchange in the Biosphere, a biophysics class taught by the late Dr. David M. Gates.
Gates grew up summering at UMBS, since his father taught the plant ecology class there for decades. As a child he tagged along on many of his dad’s class field trips. Later, his training in physics and his exposure to biology at UMBS influenced his life-long career direction in biophysics. So, Gates’ nostalgic class field trips in 1964 were at his dad‘s favorite places, including Sleeping Bear Dunes.
It is that field trip that fondly I remember most. We hiked across the dunes to the high slope overlooking Lake Michigan, collected biophysical data on the dunes and learned about the vegetation and their adaptations for surviving in such a harsh, wind-blown environment.
We observed the hill atop the dune known as the “Sleeping Bear” of Native American legend. At one time, trees and shrubs stabilized the shifting sands so that the dark-green prominence stood out from the vast expanse of brown sand and was visible miles away out in the lake. We observed that the hill (the “mother Sleeping Bear”) was badly eroded on the lake side, but trees and shrubs remained on the edges of the blow out.
That evening, we camped out on the dune. It was a perfect, star-lit summer night with no need for tents. Our sleeping bags were rolled out so we were all facing the lake, overlooking the legendary “bear cubs,” North and South Manitou islands. What a memorable night, watching the freighters steam silently by and sharing our knowledge with each other of the locations and names of the planets, stars, and constellations. The next day, among other activities, another student and I volunteered to run down the slope to the lake shore and measured the height of the dune with an eye level, one body length at a time on the way walking back up.
Gates became the new director at UMBS in 1971. Established in 1909, UMBS was primarily an 8-week summer session for teaching and research. Gates had the vision to initiate a new, year-round research program, and I was hired in 1972. My wife, Susan, and I dropped my Ph.D. thesis off at the University of Wisconsin-Milwaukee library on our way north that year, and I was conducting inland lakes research and teaching the limnology class several weeks later. Susan led the children of faculty members on various environmental activities that year, including directing them in a play for the whole camp based on Dr. Suess’ book, The Lorax.
Among other research activities, I received three contracts at UMBS from the National Park Service (NPS) in the 1970s shortly after the Sleeping Bear Dunes National Lakeshore was established in October 1970. Two contracts were for baseline water quality surveys of the lower Platte River in Benzie County and Florence Lake on South Manitou Island.
The one on the Platte River became a bit controversial since we identified that the new Pacific salmon hatchery on the Platte was a significant source of phosphorus loading (long since corrected) to the river system.
The third contract was to conduct a red fox population estimate during winter on South Manitou where fox during the breeding season were killing hundreds of gull chicks in the big gull colony on, aptly named, Gull Point. The question was whether there were high numbers of fox or a few families showing their kits how to hunt. We concluded it was the latter. In fact, the population (5-7 individuals was our estimate) was probably suffering from generations of inbreeding and perhaps also insufficient food during the colder months (we observed evidence of fox eating dead alewives on the beach). We saw one red fox in mid-winter that was not much larger than a fox squirrel.
Max Holden was the NPS project officer for the three contracts out of their Nebraska regional office. He did a site visit at UMBS on our progress one spring. After the daylong meeting, I went home that evening, and Max wanted to drive around the area sightseeing. I lived in a Mennonite farming community south of Pellston. That evening, our next-door neighbor was teaching me how to plow my garden with his one-horse plow. The next day, we had another meeting with Max. He said he was impressed with the pastoral farm scenery in the area. He even saw a guy working with a one-horse plow. It was me! Max left his desk job and became the first park naturalist at the Sleeping Bear Dunes National Lakeshore.
In retrospect, I was fortunate to have experienced camping out on the dunes and running down and walking up the steep slope to and from the shoreline prior to the establishment of the National Lakeshore. If the Lakeshore had not been established in 1970, large numbers of people that did what I did back then would have trampled and degraded the sensitive habitats of the dunes area. Today, camping is wisely conducted in designated campgrounds and hiking and playing on the dunes is confined to designated hiking trails and the Dune Climb, thereby preserving for future generations one of the most picturesque and highly visited natural areas in the State of Michigan.
John Gannon is a limnologist and fisheries biologist. He received degrees in biology at Wayne State University, fisheries at the University of Michigan, and zoology (limnology) at the University of Wisconsin. He spent 12 years in academia and 29 years in federal government service, working on the Great Lakes his entire career. Now retired, his career evolved from research, to research program management, to the interface between research and policy. He held positions at the University of Michigan Biological Station, SUNY-Oswego, ihe U.S. Geological Survey Great Lakes Science Center (and its predecessors), and the International Joint Commission.
Researchers started to get interested in microplastics around 2012, but outside the scientific community, microplastic pollution in the Great Lakes hasn’t gained much interest. How much has been done to reduce microplastics? How much has been done to make the general public aware of this serious and growing threat?
In 2016, there was official acknowledgement that plastic debris and microplastics were becoming an environmental and, potentially, a health hazard in the Great Lakes basin. In September 2016, the International Joint Commission (IJC) published aworkshop report with 10 recommendations on microplastics in the Great Lakes. The report’s problem statement underscored the seriousness of the issue: “Microplastics come from many sources that are part of our everyday lives and are present in the Great Lakes. These microplastics may cause a range of adverse environmental and human impacts which we are only beginning to understand.”
Neither the IJC nor others have taken significant action on the report’s recommendations. This is not surprising, since many of the recommendations are extremely difficult and expensive to implement. Some recommendations would take millions of dollars even to launch. But we cannot afford to hesitate. Here are some of the workshop recommendations and my status report on each.
IJC Recommendation: Communicate results of research to share information with the public of all ages and decision makers, through the development of Great Lakes-focused educational materials.
Progress: Few K-12 educational materials have been developed on microplastics. There is still very little general public awareness of microplastics issues. Broad communication about microplastics problems and solutions is not happening. Numerous universities around the Great Lakes have been conducting research on microplastics, but results have largely been communicated only within the scientific community. Many environmental organizations have organized beach cleanups annually, although these are generally not targeted towards microplastics.
IJC Recommendation: Encourage prevention of plastic marine debris through changing behavior by using education, outreach, policy and market-based instruments.
Progress: Implementing this recommendation is a daunting task because changing behavior is extremely difficult. Recycling programs have expanded but a 2019 EPA report estimates only 10% of single-use plastic is recycled. Much single-use plastic goes into landfills and the aquatic environment, ultimately becoming microplastics. Operation Clean Sweep has been operating for 25 years. Plastic item manufacturers pledge to prevent plastic pellets, flakes, or dust from entering the environment. This has been successful for manufacturers but does not address the single-use plastics end-of-life issues. Few market-based bans or fees have been enacted to reduce single-use plastics. The most successful ban is on plastic shopping bags, but it is usually a local effort, not state or national. And a Michigan law actually prohibits local governments from banning plastic shopping bags. Numerous beach communities have banned plastic straws.
There hasn’t been a state or Great Lakes regional effort to reduce single-use plastics. Great Lakes states took the lead on a phosphate detergent ban in the 1960s and 1970s, leading to a major reduction in nutrient pollution and reducing eutrophication of the Great Lakes. Could a single-use plastic ban by Great Lakes be effective?
IJC Recommendation: Assess the impacts of ecological and potential human health impacts using an ecological risk assessment framework (exposure/hazard).
Progress: Although slow, this is finally becoming one of the areas of greatest progress. In the last 5 years, universities and health organizations nationally have been researching the ecological and health impacts of microplastics. Universities around the Great Lakes region are leading the microplastics research efforts for freshwater. Recently published articles include material on microplastics in beer brewed with Great Lakes water and the quantity of microplastics found in bottled water and tap water. Recently, research has been published on impacts to various flora and fauna in aquatic environments.
We’re learning about the devastating impact of microplastics on plankton. The reproductive and digestive systems of zooplankton, near the base of the food chain, are being disrupted. Great Lakes fish are consistently found with microplastics in their tissues, circulatory, and digestive systems.
The study of human impacts from microplastics is both slower and more difficult. A December 2020 article in The Guardian reported a study by scientists in Italy who identified microplastics in the placenta of human babies. The full impact of these studies is not known, but the research is shocking. Finding microplastics in the placenta indicates there were microplastics in the bloodstream of the mothers.
It is documented that microplastics can be carriers of many pollutants. Persistent Organic Pollutants (POPs) are a large group of toxic organic pollutants that can attach to the microplastics and then can be transferred to aquatic organisms, enter the food chain and eventually enter the human body. It is very difficult to trace the pathway to humans, but we do know that concentrations of 14 organochlorine pesticides, 7 polychlorinated biphenyls (PCBs), 14 polybrominated diphenyl ether (PBDEs) 4,4′-DDT and some PBDEs such as BDE 99 and BDE 209, brominated flame retardants, and perfluorinated chemicals like PFOS are all found in the human body.
IJC Recommendation: Compare and analyze existing programs and policies for reduction and prevention of plastic marine debris and promote those that are good models for plastics management.
Progress: In 2014, the National Oceanic and Atmospheric Administration (NOAA) collaboratively developed the first Great Lakes Marine Debris Action Plan, a land-based plan with 26 volunteer organizations participating. The 2018 summary document listed 53 actions in the plan. At the end of 2018, 22 actions had been acted upon. The Great Lakes Marine Debris Plan was very extensive, well-developed, and had many partners and very specific actions. The most disappointing part of the plan was the lack of industrial partners. The American Chemical Society was the only industrial partner identified. Could large industrial partners such as P&G, Unilever, Clorox, and SC Johnson have been recruited?
A new 2020 Great Lakes Marine Debris Action Plan was created by a voluntary, collaborative effort of 39 organizations from the United States and Canada to address marine debris through coordinated actions. This Action Plan encompasses work that will be undertaken in a five-year span (2020-2025). The plan will be re-evaluated and updated in a mid-year review. Again, there are few industrial partners that could make a positive impact and also help fund the plan.
IJC Recommendation: Invest in solution-based research, including innovative product development and water infrastructure improvements.
Progress: On their own, several textile manufacturers such as Nike, North Face, and Patagonia have been investing millions of dollars in research to understand the extent of the microplastics problem and how to reduce it. Also, some manufacturers such as SC Johnson, P&G, and Unilever have been working on plastic waste reduction for several years.
Very little research has been conducted on removing microplastics and microfibers from wastewater. Several universities have recently identified new methods to remove or degrade microplastics in wastewater. It will take billions of dollars for research to develop effective methods to remove or degrade the microplastics in the aquatic environment. This research needs to focus on the entire aquatic environment, both fresh and saltwater.
IJC Recommendation: Develop and/or adopt standardized sampling and analytical methods for microplastics. For example, the National Oceanic and Atmospheric Administration (NOAA) has developed sampling and analytical protocols for microplastic particles in the size range of 0.333–5 mm that can be encouraged to be used in microplastics sampling and research. There is also a need to develop/utilize sampling and analytical methods able to measure plastic particles at sizes smaller than 0.333 mm.
Progress: Many universities and institutions have been developing analytical methods for sampling open water, drinking water, wastewater, and even beer. An excellent review of method by Joana Correia Prata, et.al, is inMethods for sampling and detection of microplastics in water and sediment: A critical review, found in the peer-reviewed journal Trends in Analytical Chemistry, which describes a method for measuring the microfibers from washing machine water. There has been great progress on methods, but little effort to collaboratively agree on standard methods. A review of Standard Methods of Water and Wastewater Analysis indicates standard microplastic methods have not been adopted by the three sponsoring organizations.
Communities, the media, and K-12 schools have been slow to recognize the serious issue of microplastics in the Great Lakes. Microplastics in the oceans are much more widely acknowledged; globally, more research is being done on marine environments.
What Can We Do to Make the General Public Aware of Microplastic Issues in the Great Lakes?
Can we convince plastic manufacturers and manufacturers of single-use plastic items to join the effort to educate and take responsibility for the items they manufacture so they don’t go into the environment? Will it take legislation on the federal or state level to have enough impact to reduce the volume of microplastic entering the Great Lakes? How do we influence Great Lakes States legislators to pass legislation to control the Microplastics waste entering the Great Lakes? How do we start to repair the harm that has been done to the Great Lakes and its ecosystem? These are critical questions to address if we’re to attack the microplastics problem seriously. Our Great Lakes deserve no less.
David Long is the founder of Environmental Sustainability Solutions, LLC (ESS), which provides consulting services for environmental sustainability.